If you think things are bad here, wait until you hear about Washington State, USA - quite astounding language in a legal judgment

[Another2Cats]

This is the first time I have ever read the phrase "This is a case about swinging dicks." in a Court of Appeal judgment

(Sorry that this is very long - just skip to the bottom, if you just want to hear about the swinging dicks)

The case had to be put by way of violating religious beliefs as the laws on sex in that state are written in a way that is trans-inclusive.

So, there has been a long running case in the State of Washington which reached the Court of Appeal and the US Ninth Circuit Court of Appeals just yesterday delivered its latest judgment on the matter.

The case is Olympus Spa v Armstrong. Back in 2020 a trans-identifying man by the name of Haven Wilvich approached Olympus Spa (which is a woman only spa where there is nudity required in certain parts of the spa) and stated that he wished to use their services.

The spa refused him service on the ground that he was not a woman and so Wilvich complained to the Washington State Human Rights Commission (WSHRC).

The WSHRC threatened to prosecute the spa as their women only policy violated the state's anti-discrimination law.

To avoid trouble, in 2021 the spa chose to accept the WSHRC's demands. However, then in 2022 the spa owner brought a case against WSHRC (in the name of it's Director, Andreta Armstrong - hence the name of the case).

The owner claimed the settlement violated his first amendment rights to free speech and religion. He stated that his spa had lost business after some patrons had seen "male genitals" and no longer felt safe. He also stated that including trans-identifying men at his establishment went against his Christian beliefs.

It finally got to court in 2023 and the Western Washington District Court dismissed the case saying that no rights were violated.

The owner of the spa then appealed. There was a judgment given on the case back in 2025. By a two to one majority the Court of Appeal rejected the appeal and said that the Washington law forcing services to include trans-identifying men with women

"...does not impermissibly burden the Spa’s First Amendment rights to free speech, free exercise, or free association, we affirm the district court’s dismissal of the Spa’s complaint."
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There was then an application for the case to be reheard "en banc". This is when all the judges in the Court of Appeal (or a larger number) hear a case rather than just three of them.

That was also unsuccesful

However, one of these other judges gave a dissenting opinion that rather upset the other judges as he was very forthright in his language. This is just a couple of extracts as it is a long opinion:

VANDYKE, Circuit Judge, dissenting from the denial of rehearing en banc:

This is a case about swinging dicks. The Christian owners of Olympus Spa—
a traditional Korean, women-only, nude spa—understandably don’t want them in
their spa. Their female employees and female clients don’t want them in their spa either. But Washington State insists on them. And now so does the Ninth Circuit.

You may think that swinging dicks shouldn’t appear in a judicial opinion.
You’re not wrong. But as much as you might understandably be shocked and
displeased to merely encounter that phrase in this opinion, I hope we all can agree that it is far more jarring for the unsuspecting and exposed women at Olympus Spa—some as young as thirteen—to be visually assaulted by the real thing.

[...]

For women nationwide, this is not progress. This is regression. Confusion in
civil discrimination codes now compels tolerance of the very same conduct that the criminal code simultaneously penalizes. The instances of male voyeurism and indecent exposure in female spaces will continue to grow in number. See Brief of Women’s Declaration International USA as Amicus Brief in Support of Neither Party at 12–19. Sadly, the crowd of women and girls who have been victimized by men in formerly safe and private female spaces will grow as well.

Finally, I’ll respond briefly to my colleagues’ discomfort with how I’ve written this dissent. My distressed colleagues appear to have the fastidious sensibilities of a Victorian nun when it comes to mere unpleasant words in my opinion, yet exhibit the scruples of our dearly departed colleague Judge Reinhardt when it comes to the government trampling on religious liberties8 and exposing women and girls to male genitalia.9 That kind of selective outrage speaks for itself. The public deserves a court that is actually trustworthy. We should be earning that trust, not demanding it like petty tyrants

Yes, the introduction to this dissent intentionally uses indecorous language.
But that is quite literally what this case is about. Male genitalia is precisely (and
only) what the Spa, for religious reasons, objects to admitting into its female-only space. The fact that so many on our court want to pretend that this case is about anything other than swinging dicks is the very reason the shocking language is necessary. The panel majority uses slick legal arguments and deflection to studiously avoid eye contact with the actual and horrific consequences of its erroneous opinion. The “ordinary Americans” affected by the majority’s opinion don’t have that luxury. Squirm as we might, I think it’s only fair for our court to have a small taste of its own medicine.

Sometimes “dignified and civil” words are employed to mask a legal abomination. Or, to put it in vernacular perhaps more palatable to my colleagues’ Victorian sensibilities: “In law, what plea so tainted and corrupt, / But, being seasoned with a gracious voice, / Obscures the show of evil?”10

Sometimes coarse and ugly words bear the truth.11 I coarsely but respectfully
dissent from our court’s willingness to leave this travesty in place

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The 2025 judgment as a pdf is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2025/05/29/23-4031.pdf

and the latest judgment that I have quoted from is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2026/03/12/23-4031.pdf

There really is just a whole world of difference between the legal landscape here and in the USA.

Terrific turn of phrase, spot on on this specific topic, but I wouldn't trust him on issues like abortion, lesbian and gay rights and gun ownership.
Another case of somebody being sound on women only spaces etc but definitely not on other issues.

Clever man, I’m pleased he was able and ready to speak up, and strategically very effective.

I believe that this judge just de-clothed the emperor.

Marie I agree with you but on this issue this kind of language is essential.

The reason why many of the cases in the US, that in the UK would be argued on the basis of Equalities law, are argued on the basis of religious freedom is because it's the strongest equivalent tool in the US in the Constitution.

This is the First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

If it can be effectively employed, it can be hugely effective.

In case this might help, have a look at this very recent ruling by the US Supreme Court that, to be argued effectively, had to rely on the right to have religious freedom:

https://www.scotusblog.com/2026/03/divided-court-sides-with-parents-in-dispute-over-california-policies-on-transgender-students/

To explain more, think about how Maya Forstater managed to turn everything upside down at the Employment Appeal Tribunal. She had to argue within the available legal framework so rather than arguing that she was entitled to talk about the material reality of sex, she had to build a case that would convince the judge, and so it was won on her right to believe that the material reality of sex was actually a thing.

That is satisfying to read, thank you for posting.

So the owner isn’t actually religious? I’m not sure why he thought he bringing the case on religious grounds would work at all then.

Don’t they have ‘common decency’ type laws in the USA they could have gone with?

Plus I’m not sure citing ‘culturally Christian standards’ would work anyway - USA isn’t a Christian country, Austria (which has mixed nude bathing) is, the Netherlands (which also has mixed nude bathing) was traditionally Christian and has, I believe, a higher proportion of Christians than the UK I think even today.

I think they need to go for single sex provision like the SC at a Federal level if it doesn’t exist already, it’s annoying their States can just make up their own laws in these cases.

EDIT: I hadn’t read Nauticant’s post when I was writing this, just going back to read now lol!

Thinking about it, Maya Forstater's right to believe that the material reality of sex was actually a thing as the basis to win a legal case isn't that far away from a legal argument that a parent has a right to raise a child according to the parent's religious beliefs to prevent them from being transed by an indoctrinated school teacher.

Thank you for your posts, that does make sense in both cases you’ve cited. I think where the balance in the spa case is that they are essentially saying he is entitled to believe what he wants, but not entitled to ‘inflict’ (sorry can’t think of the word) his belief on his spa? Or rather that the Law in that particular State to allow intact trans identified males in his spa is not interfering with his right to believe intact males shouldn’t be there?

I must admit I’m befuddled how they came up with that, in that case!

Here’s one example in Scotland. Richard Lucas is told that what he is reading out to John Swinney from Scottish sex education materials is not suitable for the meeting. To which he responds that if it’s not suitable for adults then it clearly is not suitable for children in schools.

https://m.youtube.com/watch?v=ujePAmm5uK4

Thanks for the video, most educating thank you!

Sorry it’s off topic but did Scotland revise their programme after that? I agree with the principle of getting children /preparing them for the world they will face, but really not sure those clips will do it!

I’m also trying to find what’s shown in schools in England, or is it up to each school what materials they use as long as they cover the statutory?

"I think they need to go for single sex provision like the SC at a Federal level if it doesn’t exist already, it’s annoying their States can just make up their own laws in these cases."

The US is very different from the UK in terms of the power of the individual states. In the US, the federal government's powers are limited to those given to it by the states.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. -- 10th Amendment to the US Constitution

This is an extremely important principle in the US. The federal government has limited powers. Traditionally, these delegated powers are restricted to specific areas like interstate commerce, national defense, and coining money, while all other authorities are reserved for the states or the people.

The UK has a unitary government. Power is centralized in Parliament, which devolves some powers to Scotland, Wales, and Northern Ireland. If Parliament wanted, it could take those powers back.

"[T]he most important distinction between a unitary system and a federal one is that the states or provinces of a federal state have constitutionally protected sovereignty. Within a federal system the state or provincial governments share sovereignty with the central government and have final jurisdiction over a broad range of policy areas."

States rights is a cherished concept in the USA. You'd probably have (almost?) every state fighting against the federal government having primary control over this.

https://www.britannica.com/topic/constitutional-law/Unitary-and-federal-systems

What an amazing judge, an absolute hero.
This is the second case I've read in the last month though, where religion has been used as a right and reason to object to men in womens spaces.

It really, really fucks me off that yet another ideology (religion) has to be utilized as a reason for disallowing it. Women stating they don't want it because it encroaches on their safety just isn't a good enough reason apparently and it really highlights where we are in the social hierarchy. Our voices are worth nothing.

Just my few, very unknowledgable, thoughts on this – there are others here who clearly know a lot more about the US system. If I’ve got anything wrong or misunderstood anything please let me know.

For context, the Washington State equivalent law of our Equality Act lists their equivalents of protected characteristics like this:

(1) The right to be free from discrimination because of race, creed, color, national origin, citizenship or immigration status, sex, honorably discharged veteran or military status, sexual orientation, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability is recognized as and declared to be a civil right.

Then in the definitions it says:

(28) "Sex" means gender.

(29) "Sexual orientation" means heterosexuality, homosexuality, bisexuality, and gender expression or identity. As used in this definition, "gender expression or identity" means having or being perceived as having a gender identity, self-image, appearance, behavior, or expression, whether or not that gender identity, self-image, appearance, behavior, or expression is different from that traditionally associated with the sex assigned to that person at birth.

The WSHRC alleged that the spa was discriminating on the basis of sexual orientation. And in Washington “sexual orientation” includes being trans-identifying.

The Court said that the spa did not challenge this actual law (but instead made a claim under First Amendment rights) and that

“Washington chose an expansive definition of sexual orientation, and it is not our province to rewrite the statute.”

The court also suggested that the spa may have a case on other grounds:

“We are not unmindful of the concerns and beliefs raised by the Spa. Indeed, the Spa may have other avenues to challenge the enforcement action. But whatever recourse it may have, that relief cannot come from the First Amendment.”

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But then there were three dissenting opinions (including Judge Vandyke). I have no idea of the strength or otherwise of those arguments and it will be interesting to see where the case goes.

The dissenting arguments, as far as I can make them out, fall under a number of headings

The law does not ban all discrimination based on gender identity. As a result, a judicial review should use the higher hurdle of “strict scrutiny” rather than “rational basis” when deciding if a law is constitutional or not.

Washington has a carve out, similar to ours, that private associations can limit membership to their equivalent of a protected characteristic (like the WI or Girl Guides here). However, it does not extend that same carve out to service providers.

So a woman-only private membership spa is fine in Washington but a woman-only spa open to the public is not. Since the law allows discrimination in some areas but not others then it should be held to the higher standard of "strict scrutiny".
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Also, the law treats different expressions of religion differently; some are considered discrimination, some are not. Washington allows a small range of religious activities to discriminate, such as religious services, burials etc.

But other sorts of religious activities are not covered. The spa claimed that they took the decision to practice and express their religion by offering spiritual healing through single-sex ritualistic massage treatments.

The problem taht Washington now faces is that shortly after the 2025 judgment there was a separate Supreme Court judgment (Catholic Charities v Wisconsin 605 US 238 (2025) ). This basically said that if a law is going to allow only a small set of formal and orthodox religious practices while excluding “less ritualistic, more unorthodox, [and] less formal” religious practices then there is a higher hurdle for the law to pass.
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Another argument was that the law undermines legal protections granted to women as a class and also generates a conflict with criminal laws against voyeurism and indecent exposure. The main thrust of this argument is essentially the same as For Women Scotland, that a certificated sex (or, in this case, just self ID) reading of the law undermines equal protection laws for women.

As a result, it is said, the law must be held to a higher standard of “strict scrutiny” when doing a judicial review of whether the law is constitutional or not.

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I have no idea where this case is going to go, but it will be interesting to watch.

Online discussion about the implications of this case on 25 March - but as it is 7pm est I think that means midnight in the UK?

Join us on Wednesday, March 25, 2026 at 4pm PST / 7pm EST to learn more about recent developments in Olympus Spa v. Armstrong.

Women’s Declaration International USA legal consultant Kara Dansky, who wrote our amicus brief in the case, will be joined by Elspeth Cypher, board president of Women’s Liberation Front and associate justice (retired) on the Supreme Judicial Court of Massachusetts, to provide an update on Olympus Spa v. Armstrong. On March 12, the 9th Circuit declined to hear the case en banc.

What happens next? What steps can you take to help us continue our work to protect the sex-based rights of women and girls in the 9th Circuit? Tune in to learn more!

WDI USA public actions coordinator Irene Lawrence will facilitate.

In case anyone is intested you can register here https://womensdeclarationusa.com/webinar-recent-developments-in-olympus-spa-v-armstrong/

"but as it is 7pm est I think that means midnight in the UK?"

Normally yes, but the US have already put their clocks forward so its 11pm UK time.

ARen't all sex realists now transphobes?